Opinion
No. 30075.
June 7, 1972.
Jack Greenberg, Norman J. Chachkin, Margaret Ford, Harvey Goldschmid, Samuel Gates, Peter E. Quint, New York City, A. P. Tureaud, New Orleans, La., for plaintiffs-appellants.
Bernard N. Marcantel, Dist. Atty., Charles R. Cassidy, Asst. Dist. Atty., for defendants-appellees.
Appeal from the United States District Court for the Western District of Louisiana; Edwin F. Hunter, Jr., Judge.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
ON PETITION FOR REHEARING of 446 F.2d 266, 5 Cir.
It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.
I respectfully dissent.
"Closing schools for racial reasons would be unconstitutional." Lee v. Macon County, 5 Cir. 1971, 448 F.2d 746. Accord: Bivins v. Bibb County, 5 Cir. 1972, 460 F.2d 430; West Point Municipal School District, 5 Cir. 1971, 446 F.2d 1362; Gordon v. Jefferson Davis Parish, 5 Cir. 1971, 446 F.2d 266; Wright v. Board of Public Instruction of Alachua County, 5 Cir. 1970, 431 F.2d 1200; Carr v. Montgomery County, 5 Cir. 1970, 429 F.2d 382; Choctaw County Board of Education v. United States, 5 Cir. 1969, 417 F.2d 845. "Such a plan places the burden of desegregation entirely upon one racial group." Brice v. Landis, N.D.Cal. 1969, 314 F. Supp. 974. See Quarles v. Oxford Municipal Separate School District, N.D.Miss. January 7, 1970, C.A.W.C. 6962-K.
This case, however, is atypical. The district court found that, "One of the reasons for the transfer was the feeling that white students would not attend the formerly all black school", Jeff Davis High School. But he found also "valid educational reasons existing for the closing of Jeff Davis High and for the consolidation of Jeff Davis and Jennings High as one high school".
Most of the damage caused by the fire occurred in a distinct and self-contained portion of the school. That part of the school has now been torn down. As I understand the record, the Junior High School building was untouched by the fire. The Senior High School building was charred on the outside but sustained no interior fire damage. Vandals have caused damage, the repairs for which would cost about $20,000. I question whether the school board sustained its heavy duty of proving that the Jeff Davis High School facility was closed for non-racial reasons.
A year has passed since the implementation of the present plan, during which time desegregation appears to be working. After a year of successful operation of the desegregation plan, perhaps now the fear of "white flight" will not materialize and the Jefferson Davis High School facility can be used again. It does not make sense to me that the Board should build new schools, or continue to use makeshift portable classrooms when it has available a facility, or at least a school that could be made usable at small cost.
I would, at the very least, remand the case to the district court with a strong suggestion that the parties, aided by the court, explore the use of the Jefferson Davis High School facility as a full secondary school, a secondary school facility containing less than all secondary school grades, or an elementary school.